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1978 Supreme(AP) 276
Andhra Pradesh High Court
Judges : A.GANGADHARA RAO
Indian Drugs and Pharmaceuticals Ltd., Hyderabad - Appellant
Versus
Savanji Transport P.Ltd., Hyderabad - Respondent
Decided On : 08-25-78
The liability of a common carrier is that of an insurer, and the burden of proving the absence of negligence is on the carrier.
Headnote:
CARRIERS ACT, 1865 - SECTION 8, 9, 10 - LIMITATION ACT, 1963 - ARTICLE 10 - NOTICE OF LOSS OR INJURY - LIMITATION FOR SUIT - BURDEN OF PROOF - NEGLIGENCE - LIABILITY OF COMMON CARRIER.
Fact of the Case:
The plaintiff, a pharmaceutical company, entrusted 495 cartons of medicines to the defendant, a transport company, for transportation from Hyderabad to Ahmedabad. Upon receiving the goods, the Ahmedabad branch found 26 packages damaged and returned them to the plaintiff. The plaintiff filed a suit for damages, alleging negligence on the part of the defendant.
Finding of the Court:
The court held that the plaintiff failed to prove that the goods were damaged while in the defendant's possession. It found that the plaintiff had not provided sufficient evidence to establish that the goods were received in a damaged condition at Ahmedabad and that the defendant was negligent in handling the goods.
Issues: 1. Whether the suit was barred by limitation under Section 10 of the Carriers Act, 1865? 2. Whether the plaintiff had discharged the initial burden of proving that the goods were transported in good condition and delivered at Ahmedabad in a damaged condition? 3. Whether the defendant was negligent in handling the goods?
Ratio Decidendi: 1. Section 10 of the Carriers Act, 1865 does not prescribe a period of limitation for filing a suit against a common carrier for loss or injury to goods. It only requires that a notice of loss or injury be given to the carrier before instituting the suit and within six months of the time when the loss or injury first came to the knowledge of the plaintiff. 2. The plaintiff failed to prove that the goods were damaged while in the defendant's possession. The plaintiff did not examine any witnesses from the Ahmedabad branch who received and checked the goods, and the original document allegedly signed by the defendant's agent at Ahmedabad was not produced in court. 3. The burden of proving the absence of negligence is on the carrier. However, in this case, the plaintiff failed to establish that the goods were damaged while in the defendant's possession, and therefore, the question of negligence did not arise.
Final Decision: The court dismissed the plaintiff's appeal and held that the plaintiff had failed to prove that the defendant was negligent in handling the goods.
( 1 ) I am reluctantly dismissing this appeal. The Indian Drugs and Pharmaceuticals Ltd. is the plaintiff and Savani Transport (P) Limited is the defendant. The plaintiff manufactures Drugs and Pharmaceuticals at Hyderabad. It transpires from evidence that the plaintiff entrusted 495 cartons of medicines consisting of Apidin Tablets and APC tablets to the defendants branch at Hyderabad on 11th Nov. , 1971 to be transported to their Ahmedabad Branch. When they were entrusted, they were in good condition. The Ahmedabad Branch received the goods, but found 26 packages (17 cases of Apidin Tablets and 9 cases of APC tablets) in a damaged condition. So, they sent back the damaged packages to the plaintiff through defendants lorry on 25th Nov. , 1971. They found oil marks on the outward packages of the carboard carton and bad smell emanating from the packages and they were unfit for human consumption. At Hyderabad, those cases were opened in the presence of M. Santosh Kumar, Central Branch Manager of the defendant-company. On 15th Dec. , 1971 the plaintiff issued a notice to the defendant-company to make good the loss. There was no reply from the defendant. On 20th Dec. , 1971 another notice was issued by the plaintiff to the tablets were salvaged and, therefore, claiming only Rs. 7016-15 towards the costs of the packing material of the Apidin Tablets and the freight charges. The defendant did not give reply to that notice. On 25/01/1972 the plaintiff issued a lawyers noticee, Ex, A-42 to the defendant, to which the defendant gave the reply, Ex. A-433 on 23/02/1972 denying his liability to pay any damages. Therefore, the plaintiff filed this suit.
( 2 ) THE defendant resisted the suit stating that originally the plaintiff informed them that a lorry load was available, but subsequently, they were informed that the goods were not of full lorry load and the freight would be paid on the basis of weight load. The Representative of the plaintiff had no objection if the goods of other parties were also taken in the lorry to make up the full lorry load. Therefore, the defendant loaded in that lorry not only the goods of the plaintiff, but also the goods belonging to third parties. When the goods were delivered at Ahmedabad on or about 18th Nov. , 1977, they were received by the consignee without any objection. He denied that the goods were damaged in transit due to his negligence. He said that 26 cases were booked again on 25th Nov. , 1971 from Ahmedabad to Hyderabad and at Hyderabad they were delivered to the plaintiff. He stated that there was no negligence on his part. He also contended that the suit was barred by time since it was not filed within six months from the date when the plaintiff came to know of the loss or injury.
( 3 ) THE learned Additional Judge, City Civil Court, Hyderabad who tried the suit, found that a portion of the same goods was sent back to Hyderabad from Ahmedabad as a separate consignment, and the plaintiff had failed to prove that the defendant was negligent in handling the goods entrusted to him as a Public Carrier. He also found that the suit was not in time. Consequently, he dismissed the suit.
( 4 ) IN this appeal filed by the plaintiff, it is submitted that when once the learned Judge has found that part of the same consignment was sent back to Hyderabad he should have held that the negligence on the part of the defendant was proved. He submitted that the learned Judge had wrongly cast the onus upon the plaintiff to prove that the defendant was negligent, on the other hand the statutory presumption is upon the defendant to prove that he was not negligent. He also submitted that the learned Judge has misconstrued S. 20 of the Carriers Act.
( 5 ) IT was contended by the learned counsel for the respondent that there was no evidence to show that that 26 cases were delivered at Ahmadabad in a damaged condition, that no one connected with the Ahmadabad branch was examined, that after retainin
